Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1887-01-13

Considerable has been said and
written of those "eccentricities, ("
but "the half has never been told, "
and / seriously doubt if Hon. VIM.
z. Ross, with all his learning and
} undoubted ability to explain
technicalities of the law will ever
be able to convince those people
that the supreme court did not act
with an utter disregard for the
law; but do not desire to go into
the Bryan and Lindsey cases. /
did not raise the controversy on
them. (but most earnestly do l
thank those who did, for / want
the people to know just what those
proceedings were and what the
! CuIEFTA1N editor calls "eccentrici-
ties.") Only one word on the
Bryan case: / understand that
Judge WHY'S friends claim that
he dissented from the decision
rendered. If such be the case he
deserves no credit, from the fact
that he has not publicly said so,
by filing a dissenting opinion. l
scarcely know which of the "eccen-
tricities" to take up, but as the
case of Tucker VS.. Dawn, from
Cooweescoowee district, seems to
be the most fragrant "eccentrici-
t." l will deal with it for the
present and as you read, / ask
that you refer to the sections of
law l shall point out (in the com.
piled laws and supreme court
rulings) and see if they are in
reality "eccentricities; as you call
them-or have come nearer
striking the keynote2
If | remember dates correctly
the case was instituted in 1881 and
in 1882 il reached its 3rd calling on
he docket, and defendants coun-
sci moved to dismiss the case
upon the ground that the figures
"S1, >" in the body of the citation
had been erased and the figures
"S2" substituted. Now permit me
to say, with all due Difference to
the learned attorney for the de-
fense, that if it is within the power
of court to enquire into the
sufficienoy of bond for costs in
the face of section 7, page rs,
where the bond is marked, zap
proved" by the district clerk, that
this bond question should have
been looked into before he asked
that the case be dismissed at
plaintiffs costs. But such was
not the case. The motion upon
the citation was argued and sub
mitted to Hon. Geo. w. Clark, the
presiding Judge. who sustained the
motion and dismissed the case.
Exceptions were taken to the
rulings Of the court by the plain
tiff and an appeal granted to the
supreme court. Now if q bond
could have been questioned, this
was the time before the party
should have had the right to carry
a case out of the circuit court to
the supreme and had the court re-
view the proceedings in the lower
court-the witness fees should
have been secured. Still no mo-
tion was made on the bond. The
case went to the supreme court at
the October term, 1882, and the
ruling of Judge Clark on the
defect in the citation was reversed
and the case remanded to the cir
cult court for trial. 1t was placed
upon the docket for the May term,
1888, but owing to the number of
cases thereon it did not reach its
3rd calling again until Sept. 1886. |
Again: If there were any grounds |
for dismissal the time had come
see supreme court rulings page IL,
rule %, which says: "The proper |
time for a party to move the |
abatement or dismissal of a suit is
Immediately after the defendant /
has been forced to plead" Also
section 1856, page 132, 4lIpiillegTd T
laws, Yhtieehlsays: which SAYS: Motions to
-abate or dismiss suit shall be
made at the earliest practicable
moment after the alleged cause
shall exist therefore and if not
then made, the right of defendant
to make such motion shall be con-
sidered waived" Yet no motion
was made on the bond and the
case went TO the jury which think
rendered judgment in favor of the
defendant. An appeal was taken
TO the supreme court and upon
opening the case the defendants
counsel discovered (as he thought)
a defect in the wording of the
bond. He at once made a motion
to dismiss the case upon the
ground that the bond was insult
ficient, and in the face of the
plain statute above referred to on
page 1872, and the rule above
quoted, and the records showing
how the case had stood in the cir
cult court five or six years, and
had twice passed through the cir
cult court without any motion upon
the bond, the supreme court en-
the motion.
Is that an "eccentricity?"
In utter disregard of the plain
words Of the law found on page II,
section l, which says: "The court
shall give judgment as to the right
Of the matter in law shall appear,
regarding any formal de-
feet" and also on page 1873, section
1873, which says, "No suit shall be
on account of any formal
defect when the defendant is not
injured thereby" the court dis
missed the case.
Is that an "eccentricity?"